The Complainant is Bayard Presse S.A. of Montrouge, France, represented by Fidal, France.
The Respondent is Wang Songxu of Weifang, China. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC ("the Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center ("the Center") on November 19, 2014. On November 19, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 19, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 21, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was December 11, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 15, 2014.
The Center appointed Clive Duncan Thorne as the sole panelist in this matter on December 22, 2014. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant, Bayard Presse S.A., is a press and publishing group operating in 16 countries. It is a bench mark publisher in four market sectors: youth, religious, senior and nature. Through its different publishing brands Bayard Jeunesse, Milan and Twenty Third, the Bayard Group publishes more than 150 magazines worldwide.
To assist in promoting its reputation on the Internet the Complainant has registered numerous domain names, which are set out below:
- , registered since March 10, 2005
- , registered since September 10, 2004
- , registered since May 9, 2000
- , registered since January 18, 2001
- , registered since January 4, 2011
- , registered since January 4, 2011
- , registered since January 4, 2011
- , registered since January 4, 2011
- , registered since January 4, 2011
Since the creation of the Company, the Complainant has registered over 500 trademarks throughout the world including the following:
- French Trademark BAYARD, filed on July 11, 1990, renewed and registered for products and services in class 16 under No. 1719861 (live).
- Community Trademark BAYARD, filed on April 1, 2008, registered for products and services in class 9; 16; 28; 35; 41 under No. 6795629.
- French Trademark BAYARD PRESSE, filed on February 25, 1988, renewed and registered for products and services in class 1; 2; 3; 4; 5; 6; 7; 8; 9; 10; II; 12; 13; 14; 15; 16; 17; 18; 19; 20; 21; 22; 23; 24; 25; 2.6; 27; 28; 29; 30; 31; 32; 33; 34; 35; 36; 37; 38; 39; 40; 41; 42; 43; 44; 45 under No. 1 571679 (live).
- French Trademark GROUPE BAYARD, filed on March 25, 1998, renewed and registered for products and services in class 9: 16; 28; 35: 38; 40; 41; 42 under No. 98724749 (live).
- International trademark BAYARD PRESSE, filed on July 11, 1991 (in force in China), registered for products and services in class 9; 16; 28; 38; 41; 42 under No. 573921 (live).
All of these trademarks predate the Respondent's registration of the domain name in dispute registered on February 25, 2014.
According to the Complainant and based upon the WhoIs database, the current registrant of the domain name in dispute is Wang Songxu based in China. At Annex D to the Complaint is an extract from the website operated under the disputed domain name which shows pornography.
The Complainant sent a cease and decease letter on October 2, 2014 to formally request that the Respondent stop the infringing use of the disputed domain name and assign it to the Complainant on the basis that it constituted an infringement of the Complainant's trademark rights. There appears to have been no response to that letter.
There being no Response the Panel has considered the evidence adduced by the Complainant which it finds to be true. It therefore proceeds to determine the Complaint on the basis of the Complainant's evidence. 5. Parties Contentions A. Complainant
1. The domain name in dispute is identical and confusing and similar to the Complainant's trademarks.
2. The Complainant is the registered owner of numerous trademarks incorporating the word "Bayard".
3. The domain name in dispute is confusingly similar to the trademarks because it reproduces letter by letter the BAYARD trademarks with the addition of the generic term "services" which does not make the disputed domain in issue distinctive. The Respondent has simply added the generic term "services" to the BAYARD trademarks.
4. The combination of the word "services" with the mark BAYARD is likely to confuse Internet users who may believe the domain name is used by the Complainant or with its authorisation. The confusion is increased by the fact that the Complaint also maintains the subsidiary Bayard Services.
5. The Respondent has no rights or legitimate interests in the disputed domain name because:
(i) the Respondent is not in any way related to the Complaint's business, is not one of its distributors and does not carry out any activity for or has any business with it.
(ii) the Respondent is not currently and has never been known under the name "Bayard" or under the name "Bayard Services".
6. The domain name in dispute was registered and is being used in bad faith because:
(i) the domain name in dispute is a combination of the mark BAYARD in conjunction with a generic word "services" which describes exactly the Complainant's activities.
(ii) Internet users will be led to believe that the domain name in dispute provides access to the Complainant's official website when instead it directs Internet users to a pornographic website.
(iii) the domain name in dispute is used intentionally to misdirect Internet users seeking information about the Complainant or its goods and services by creating a likelihood of confusion with the Complainant's trademarks.
(iv) users of the Internet may think that the Complainant endorses the pornographic website maintained by the Respondent. This is highly prejudicial to the Complainant. B. Respondent
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings A. Identical or Confusingly Similar
The Panel has considered the evidence set out above of the Complainant's trademark rights and its long history of trading using the marks BAYARD or BAYARD PRESSE. The Panel is in no doubt that the Complainant owns trademark rights in the mark BAYARD.
The Panel has considered the domain name in dispute in conjunction with the Complainant's trademark rights and finds:
1. The generic Top Level Domain ("gTLD") "info" is not sufficient to distinguish the domain name in dispute from the mark BAYARD.
2. The domain name in dispute reproduces the mark BAYARD but differs by the mere addition of the generic term "services" and the hyphen between the words "bayard" and "services". It agrees with the Complainant that the word "services" is a common word in English and French which describes the activities of the Complainant, i.e. press publishing services.
The Panel finds that the combination of the word "services" with the trademark BAYARD into the form of the domain name in dispute is sufficient to confuse Internet users who may believe that the disputed domain name is used by the Complainant or with its authorisation. Accordingly the Panel finds for the Complainant in respect of this element. B. Rights or Legitimate Interests
The Panel finds:
1. On the basis of the evidence adduced by the Complainant that the Respondent is not currently and has never been known under the name "Bayard" or under the name "Bayard Services".
2. There is no evidence that the Respondent is in any way related to the Complainant's business, is one of its distributors and carries out any activity for the Complaint or has any business with it. There is no evidence of any authorisation given by the Complainant to use the domain name in dispute.
Accordingly and in the absence of any evidence from the Respondent the Panel finds for the Complainant with regard to this element. C. Registered and Used in Bad Faith
The Panel has considered the evidence adduced by the Complainant and in particular the screen shot of the Respondent's website set out at annex D to the Complaint. In the Panel's view this is clearly pornographic. It follows that the domain name in dispute is used to direct Internet users to a pornographic website. This inevitably is highly prejudicial to the activities of the Complainant since, as is put by the Complainant, "it constitutes sensitive contents unrelated to the Complainant's activities".
The Panel also finds that Internet users accessing the disputed domain name and accessing the Respondent's website by way of the domain name in dispute may consider that the Complainant endorses pornographic material and this is also highly prejudicial to the Complainant.
The Panel finds that the Respondent has registered and is using the domain name in dispute in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name in dispute be transferred to the Complainant.
Clive Duncan Thorne
Sole Panelist
Date: January 7, 2015
Full & Egal Universal Law Academy